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15. Know Your Rights! · Dumb Defenses

• Frankie: Hello and welcome back to the Dumb Defenses podcast, where we go around the world and through time to bring you the weirdest legal theories. I'm Frankie. Judah: And I'm Judah. Frankie: And I think Judah had some fresh hell prepared for us this week. I mean Judah: Yes, I have s I have so much fresh hell. It's we could call it fresh steaming hell. Frankie: It's Judah didn't make it. Judah's just reporting on it. Judah: So the fresh steaming hell is why is there so much unsafe shit in your food? Sometimes actual shit. Frankie: Sometimes actual shit. Judah: A lot of it, like cyclosporia, is passed through human fecal contamination and Frankie: Mm-hmm. Judah: it causes explosive diarrhea for up to weeks at a time. Frankie: And this is why the think it was Taylor Farms lettuce Judah: Taylor Farms Lettuce. Frankie: got recalled. This is where Taco Bell gets a lot of their lettuce, apparently. So Judah: Yes. But not Oregon. Oregon didn't get Frankie: Yes, Oregon wasn't on the list. Judah: Oregon did not essentially what we're looking at today, and I'm gonna go into the history of food safety in the United States, 'cause how could we resist? Is because the Trump administration cut massive amounts of funding and programming for the Center for Disease Control and the US Department of Agriculture. Frankie: And all mainly the oversight portions of those agencies. Judah: Yes. So they've been cut between twenty and twenty-five percent total. But we're seeing things like there used to be eight different foodborne parasites that we tracked in the United States consistently. and that's been reduced down to two. And Frankie: Mm-hmm. Judah: Cyclosporia PS is not one of those. So a lot of the Frankie: Nope, nor is screw worm, which was affecting cattle shortly after that got terminated. Judah: I don't know if you've also heard that we have a listeria outbreak brewing. Frankie: Mm-hmm. Judah: And CDC used to have eleven scientists dedicated to tracking food parasites. Now it's three. Frankie: Yep. Yep. Judah: We don't have hardly any food inspection personnel period. So like the on the ground people who are going to farms and factories to make sure that their practices are safe basically no longer exist. Like you can functionally not expect a food inspection from the federal government. There's also a key joint venture FoodNet, which was a joint venture of the FDA, the CDC, and the USDA. So they all came together to provide an early warning system to track down parasites and other like microbes. and that's slashed to nothing. In twenty eleven, Congress had passed a food safety bill That included a traceability rule so that you could trace where outbreaks were coming from for vulnerable ingredients. And that was supposed to go into effect this year in 2026. Frankie: Haha Judah: The rule has been delayed to 2028, but we don't know if it's going to ever happen. And so the tracing that we're seeing is a lot of like voluntary tracing and state-based tracing. And it's not as effective. Frankie: It's not as effective because the states have never had to self fund that, right? That's Judah: Yeah. Frankie: always been done through the federal government, through federal regulations, and so the states are now left without any sort of federal backing for this and they're scrambling to try and figure out how to keep their own citizens safe because the feds aren't doing it. Judah: There is so we have not had in Oregon our state any of the Cyclosporia lettuce that has affected I wanna say forty one other states. Frankie: It has. Oregon has somehow missed a few of these outbreaks. I saw a report a couple of days ago about in order to stock up on like beef products that the government's going to start importing who knows how old frozen beef from South America. namely from Brazil, which at some point in the recent past had this like over antibioticing their cattle situation. And so we might be getting that meat to bulk up the supply. But Oregon didn't make that list. So we've seemed to escape a few things. Judah: There's there's a few other things. So I don't know if you remember back in two thousand and six there was a similar parasitic outbreak based on spinach. And the FDA just basically it said, Okay, you should stop eating spinach. And you know who that affects deeply is all farmers who Frankie: Yes. Judah: grow spinach. And so on the West Coast There's a group of farmers that agreed to come together from several states to further self regulate their own leafy greens growing and production to ensure safety. And it's called the Leafy Greens Marketing Agreement. This is a completely voluntary mutual network of producers to ensure more food safety. So if you join you have to follow their regulations. There's no forcing or impetus to join other than that you're saying we're gonna be producing more safe quality leafy greens. And so Frankie: Mm-hmm. Judah: you in the western states, fortunately like our states, we can go on to the Leafy Greens Marketing Agreement site and we can look up producers in our area who have agreed to this higher level of voluntary self regulation, which provides us with higher degree of safety and certainty about the leafy greens that we're buying from these West Coast producers. So I mean so like that's Frankie: Mm-hmm. Judah: awesome for us, but it's also it feels insane that producers have had to come together to say that we're ensuring that we're producing safe leafy green vegetables. And that you can you know, we formed our own safety network and we just police each other and the penalty is getting kicked out. But that's a good resource to go to if you wanna like Frankie: Have safe food. Judah: yeah, buy leafy green vegetables, which are typically a huge target of recall, that aren't gonna make you crap your pants for three weeks. So I'd like to give a big shout out to the voluntary Leafy Greens marketing agreement people. Frankie: Absolutely. Judah: for putting that together. But now let's dig into the history of food safety in the United States and why we have the protections that we have. And I don't Frankie: Or had. Judah: or had why we should have had these things, why the programs that are currently being rapidly defunding and the enforcement is being slashed are so important. And we're gonna go back to the civil war. So it's Civil War days. There is functionally no food safety or labeling laws really Frankie: Really good medicine or anything. Judah: in the United States. So that that doesn't exist. But there is a lot of people dying from food contamination. So Abraham Lincoln has put together some scientists to be addressing this issue. So there's a great article from The Scientific American by Tanya Lewis and edited by Sarah Lewin Fraser called How a Chemist and His Poison Squad Inspired the First Food Safety Regulations. And our first kind of big hero in American food safety is a guy named Dr. Wiley. Dr. Harvey Washington Wiley, which is I think a very literary yes, Frankie: That's fantastic name. Judah: great name. they were researching what's actually in food that people are buying that's being labeled. So borax in milk, ground up bricks being sold as cinnamon and Frankie: Ew Judah: So they're testing and they're starting to tell us what's actually in these things that are being marketed as food, and there's mass adulteration of food. And they became known as the Poison Squad. Fast forward a little bit to a great American novelist and socialist, Upton Sinclair. Frankie: Mm, mm-hmm. Judah: Upton Sinclair Does first hand research and observation about the meat industry and writes a book called The Jungle. Now Upton Sinclair's goal is to expose horrifying, horrifying working conditions for particularly immigrants who are working in the meat industry, but in the process he discloses and writes about how disgusting, physically disgusting, rotting meat, pieces of human flesh fingers being put into packed meat. How meat is being adulterated to still be sold, but it's poisoned and it's rotten. And that horrifies the American public. And the white Frankie: Yeah No shit. Judah: within A short time after The Jungle is published, it's like translated into 17 different languages. It's never been out of print since it was first published, and I think 1905 or 1906. And this draws the attention of then President Theodore Roosevelt, who has a very existing uncomfortable alliance already with the meat industry, who's given him quite a bit of money. and he's really anti socialist and Upton Sinclair is an open socialist. And so he brings Upton Sinclair and and they talk and there's revelations about a series of inspections that have happened on the meat industry, but Teddy Roosevelt's like, hey don't do anything. you know, we're gonna handle this in some way. Then Teddy Roosevelt does nothing and Upton Sinclair reveals those inspection reports in the New York Times. So he's written The Jungle, big famous novel, still talked about today, and he is the whistleblower that reveals a lot of these inspection reports to a major newspaper and These two people, Harvey Washington Riley and Upton Sinclair, you can look at both of their sets of work for why the Pure Food and Drug Act. is passed. the Pure Food and Drug Act is passed in 1906 And this is a direct response specifically to the work of Upton Sinclair and him promoting other inspection voices, but it's the first major federal law. So it prevents the manufacture sale or transportation of adulterated or misbranded food, drugs, medicines, and liquors. And then the Federal Meat Inspection Act is passed, which prohibited the sale of adulterated or misbranded meat and meat products for food and ensured that the meat products were slaughtered and processed under sanitary condition. So eighteen sixty two the USDA is formed, the later eighteen hundreds, kinda eighteen eighties onward, we see Doctor Wiley and his poison squad exposing all these adulterated food, drinks, beverages, and then in 1905 we have the jungle and this expose in the New York Times and in 1906 the Pure Food and Drug Act and the federal meat inspection Act are passed. And that's huge. There was Frankie: Mm-hmm. Judah: an estimate that during the Spanish American War that hundreds of thousands of people died from eating canned meat tainted by formaldehyde. Frankie: Eww Judah: And tainted dairy. So Frankie: Mm-hmm. Judah: that was just a product of life that you didn't really know what you were buying. You really didn't. Could be could be it could be horse meat, could be rotted, could be, you know, cinnamon that you think is cinnamon, but is ground brick dust that Frankie: Yeah. Judah: you're adding to your food products. I didn't go into it, but there's some really horrifying reports about what was happening to milk. So Frankie: And raw milk is coming back. Judah: Yes, to give you all kinds of foodborne illness. there's a reason Frankie: Mm-hmm. Judah: why your milk has to be pasteurized. It's because raw milk causes so many different diseases. Frankie: It really does. Judah: Yes. in nineteen thirty eight the Pure Food and Drug Act is revised to require safe tolerance levels for unavoidable poisonous substances. so like saying, Okay, you're y you're product, even if you can't avoid this poisonous substance, it can't contain enough to make you sick and provide Frankie: That's where we get all the laws of like you can have like three parts per million of poop in your food or whatever. Judah: Yeah. so that was in 1938. It also provided additional remedies for. violations of the Food Act. Then in nineteen forty nine the FDA publishes its first ever guidance to the food industry called Procedures for the Appraisal of Toxicity of Chemicals in Food to try and influence industry actions. And nineteen fifty seven there's a Poultry Product Inspection Act that's passed for poultry that is being sold interstate as an expanse for rising market demand for ready to cook processed poultry products and in nineteen fifty eight the Federal Food, Drug and Cosmetics Act of nineteen thirty eight, which was the amendment of the Pure Food Act, is amended to ensure the safety of ingredients used in processed food because they weren't really regulating the chemicals that were going into processed food. And if you're thinking like now is the time we're thinking about like more take home dinners, things that you buy in trays and you can bake at home. John F. Kennedy introduces the Consumer Bill of Rights, which is the first act that says consumers have the right to safety to be informed about what's in their food and to be heard about food safety practices. In nineteen sixty seven, Fair Packaging and Labeling Act like I'm going through this list, but I want to mention all of these bills, if you track them through history, are in response to egregious dangers that led to injuries and death. Frankie: All of these rules are written in blood. Judah: Yes, that's the thing we say about OSHA, though about workplace safety regulations, that every OSHA regulation is written in the blood of the people that were harmed to make that regulation happen. we Frankie: Same thing for food safety. Judah: can absolutely say the same thing for food safety. So we've got fair packaging in nineteen sixty seven, in nineteen seventy. The C D C begins tracking foodborne illnesses to Try and find the outbreak to stop the outbreak so people aren't getting sick. Nineteen seventy-three is the first food recall in the United States. There were seventy-five million cans of mushrooms. And you probably know that you can pretty easily get botulism from improperly Frankie: Mm-hmm. Judah: canned mushrooms. They were removed from store shelves. And food safety and quality service through the federal government to perform meat gradings, you're like Grade A B you know, Frankie: Mm-hmm. Judah: all those that was in nineteen seventy seven to say like how quality is this meat. and then in the nineties we're starting to see scientific ways of judging food, because up to that point we're thinking about how people are able to test how food is good or not, and they were pretty limited. So a lot of it was like sight smell and looking. Frankie: Mm. Judah: but in the nineties we see pathogen reduction. and H A double C P systems enacted. So that's looking at microbial pathogens on raw products Frankie: Mm. Judah: and how to inspect those. Nineteen ninety seven, the Food and Drug Modernization Act was amended. including like nutrients, health, all the growth of like how science can regulate food and that increases we have a global food safety initiative which Obviously the United States isn't cooperating with anybody. do you know we had like a joint food safety task force between the United States and Mexico where we were trying to jointly regulate food pass Frankie: Well we import so much food from them. Judah: we import so much food and food passes back and forth between Frankie: Yeah. Judah: the borders. We're not participating in that anymore, despite the fact that we work very, very closely with our southern neighbor. Frankie: Well and you know, apparently our northern neighbor is now a threat to our No, they don't because we've Judah: They don't even wanna they don't even wanna play with us anymore. And that's reasonable. Frankie: randomly put tariffs on them, which by the way, I have to get one of my medications from overseas because it's not available in the United States. And I reordered and I paid however much I paid for my medication and then there was a thirty dollar tariff. Recuperation fee. Judah: Yeah. I'm sorry and I'm not surprised. and in twenty twenty the FDA released a blueprint for a new era of smarter food safety that included traceability and using digital technology to trace in these evolving, rapidly changing food markets. Guess what we're not using? Ha ha ha the blueprint from twenty twenty that the FDA itself published. So we've reduced funding specifically it's not just that we're looking at twenty and twenty five percent cuts to the FDA and the C D C we're looking at strategic cuts for how enforcement and inspection is happening or traceability and so the fact that the government is like not tracing cyclosporia despite the fact there is a current ongoing, still occurring diarrhea outbreak Frankie: Yeah, yeah. And a lot of these things, you know, like when the screw worm thing started, the newscaster like, You've probably never heard of the screw worm. That's because we've had it under, FDA C D C regulations, And that's recently been cut by the president. And Judah: Yeah. Frankie: a lot of these things that are starting to now come out of the woodwork are things that were eradicated or close to eradicated or were so infrequent that the C D C and the FDA were able to nip it in the bud before it became an outbreak. Judah: And now we're, you know, seeing all kinds of, you know, tofu contaminated by ink. what was it, like yogurt or something contaminated by glass? because there's Frankie: Mm-hmm. Judah: no regulations, there's no inspections occurring. If you want to learn more about what things were like before food regulation, I encourage you to read the disgusting and difficult to read book. The Jungle by Upton Sinclair or read about it. I brushed up it's been a long time since I've read The Jungle, and I remember being like viscerally difficult to read. And September is Food Safety Month. Surprise, Frankie: Mm-hmm. Judah: September is Food Safety Month. That's something that I learned during the course of my horrifying research. Frankie: Good timing. Judah: But to also remind people, you know, workers' rights are being systematically stripped, and that Upton Sinclair, wrote the jungle because of the conditions of the workers, not particularly for the food, and that's not something that latched on with people. And Upton Sinclair said about his own book: I aimed at the public's heart, and by accident I hit them in the stomach. Frankie: Yeah. Judah: And that is the What the Fresh Hell with a bit of history about food safety and why we need it and how those laws have evolved and why all of that work from Dr. Wiley in the eighteen hundreds and Upton Sinclair in the nineteen hundreds to today is important and how if there's no inspections and there's no recourse for violations, that all of that work does not matter and you are exposed to extremely dangerous food conditions. Frankie: We are closely and quickly careening towards square one in all of this. Judah: Yes. Yes. Frankie: Which, yeah, back to the Civil War era in terms of food safety. Not great. Judah: Not great. Hundreds of thousands of people were dying every year because of contaminated meat with formaldehyde. They called it embalmed meat. And Frankie: Ew and technically correct. Judah: technically correct. So this might seem like a super nerdy boring topic for our listeners, but let me tell you, if you've ever had food poisoning and you Frankie: Ooh. Judah: wanna know all the things that are in place to try and stop you from getting food poisoning or dying, There is a great history of why every rule exists, why every law exists, why inspection Frankie: Yep. Yep. Judah: checkpoints exist, and the fact that we're seeing those stripped away and food safety dramatically decrease in the course of less than a year is only gonna go downhill from here unless we Frankie: yeah. Judah: see the kind of outcry that we saw after Upton Sinclair wrote the jungle. Frankie: So this is another write your legislators and lawmakers situation 'cause we can't do it without people making a stink out of it, unfortunately. And Judah: Yeah. Frankie: not in a literal sense, but in a figurative sense. Or both. Judah: Both do what you need to do. So that is why our food is currently getting less and less safe by the day and Frankie: Mm-hmm. Judah: the history of what it took to try and get us to have a safe food market in the United States just for consumption, which is basically it's just basically not there. Frankie: Yeah. Well, and on that note, we are going to completely shift gears and we've got a little bit of a know your rights training for y'all. I wore my allegedly T shirt. Judah: I'm I'm just wearing a t-shirt from Bullfrog Music because if you spend enough money at Bullfrog Music here in Corvallis, Oregon, they give you a free t-shirt. So this is my dubious honor t shirt from Frankie: Nice. Judah: Bullfrog Music. They're a really lovely store. Frankie: Awesome. So we're not gonna do the Bill of Rights in order. We're going to kind of hit the bigger ones first and then move on to others. Biggest one, Fifth Amendment, what to do when a cop approaches you. Judah: you have the right to remain silent, but maybe not the ability, is what I have learned. Frankie: Yes. Judah: So your Fifth Amendment right to remain silent. I've done at least 25 Know Your Rights public trainings, and this is the one this in search and seizure just people Frankie: Mm-hmm. Judah: do not understand their on-the-ground rights. Frankie: Yep. Step one, when you have a cop approach you and they start asking you questions, you get to ask if you're allowed to leave. Judah: Yes, so the question to ask is Am I being detained or am I free to go? That is the only thing that you should say to this law enforcement officer. Am I being detained or am I free to go? If you are free to go, leave immediately. Frankie: You walk away. Judah: Leave immediately. Am I being detained? Am I free to go? If you are not free to go, if you are being detained, you still do not have to talk. Frankie: Yep. You have the right to remain silent. You also have the right to have an attorney appointed prior to any questioning. If a officer does not let you go and begins asking you questions, if you say I want an attorney, they have to stop questioning you. Judah: So the key phrase here is I want to remain silent, I want an attorney. so your silence, if you are just silent, that is consent. And that's gonna be a common theme throughout our discussion. If you are just silent, that is consent. And you also have to do what the Supreme Court calls an unequivocal request. So Frankie: Yes. Judah: there's a famous ridiculous case out of Louisiana where A defendant said, I want my lawyer dawg And Frankie: Mm-hmm. Judah: the police did not provide him with a lawyer. And the courts said that that was not an unequivocal request for counsel. So be short and sweet. I want to remain silent. I want a lawyer. Yep. And then shut up. If you start talking, law enforcement knows and they have techniques to keep you talking. Frankie: And if you start talking, even if it's to ask for a glass of water, it could be enough to open the door back up to undo your invocation. Judah: Yes. And anything you say is a spontaneous it's Frankie: Going to be twisted, yeah. Judah: going to be twisted and it's called a spontaneous statement and can be used against you. And the only thing that you actually have to tell law enforcement if you are not operating a motor vehicle, 'cause there's some exceptions there, is your name truthfully, and your residence if you have one truthfully. Period. And There's not like really punishments if you don't provide your name if you're not driving. Yeah. Frankie: Well, they are if you're not driving, if they have reasonable suspicion of a crime, they are able to detain you until they find out your name. Judah: And then run you. So if you're driving a car, you do have to provide your driver's license. Frankie: License registration proof of insurance. Judah: Right, so those are obligations upon you as the driver of that motor vehicle. But you don't have to provide where are you going? You know, like, what are you doing? You don't have to answer that. Here's my license, here's my proof of insurance, and here's my vehicle registration. I can lawfully operate this motor vehicle. You're under an obligation to provide those. And you don't really have to say anything else. If law enforcement wants you to take Like a breathalyzer test, you have to take that, otherwise, you'll be assumed to be drunk and your license will be suspended for a year. Frankie: Right. And so the caveats around this, right, is that when you are given the privilege of driving, because driving is not a right, it's a privilege, if you're given the privilege of driving, there is implied consent that you are going to obey the traffic laws Okay. And so if a cop pulls you over under suspicion of driving under the influence You could refuse the breathalyzer, but it is a one year license suspension. Whereas if you fail the blow, it is a ninety day license suspension. Depending on prior violations, I'm saying like first time offenders, right? Judah: Depending on if you've had prior violations circumstances. Yeah. First time offenders, you haven't been in an accident, you haven't hurt anybody. Frankie: Yep. the officer if you decline to voluntarily consent to a breathalyzer in Oregon, they are required to ask for what's called physical compliance. there's case law surrounding whether or not a breathalyzer is a search and things like that. We can get into that a little bit later. Judah: I don't think we should 'cause I've had a listener tell us to stop talking like lawyers so much. Frankie: Okay, fair. So physical compliance is a way that they've gotten around some of the case law restrictions and the courts have signed off on it. So if you do not give that physical compliance with the breathalyzer, it's a one year license suspension. Judah: So your right to remain silent is Critically important and as lawyers, as defense lawyers. Frankie: Please, please, please don't talk to cops. Judah: Please don't talk to cops. Just shut up. Like, you are not more clever. There are systems to keep you talking, to say things that you don't want to say. If you just shut up and you want to answer questions later. You can have somebody like me or Frank sitting next to you being like, okay, this one exact sentence. We're gonna negotiate this thing. We're gonna negotiate that this statement cannot be used against you. So if you want to talk, it's not preventing you from doing so, but it is preventing you from saying things that you do not want to say in ways that you do not want them to be taken that can and will be used against you. Frankie: Explaining your side of the story does not help. Judah: No. Frankie: If that's something that you want to do later on, once you have an attorney, that's a discussion that can be had. But when it comes to just talking to the cop without an attorney next to you, not a good idea. Judah: Not a good it's we're gonna say the worst idea. So what I want you to remember because I'm doing my educator thing from this first part is Am I being detained or am I free to go? If you are free to go, leave immediately Frankie: Leave. Judah: leave immediately. no pleasantries, no chit-chat, walk away. We have the exceptions for driving the car. If you are being detained. You have to say, I want to remain silent, I want an attorney. That is all you are saying until your lawyer gets there. And you Frankie: Yep. Yep. Judah: might be arrested. And if a officer says you are under arrest, puts their hand on you, you are under arrest. You have to go with them. Yeah, Frankie: Do not run, do not pull, that's extra charges. Judah: that is resisting arrest. I have had cases where I've just had resisting arrest because they couldn't prove anything else from my client. Get yourself in. Go sit. Wait in your holding cell till your lawyer gets there and then figure it out. Because that little bit of trouble that you're going through right there is gonna keep you out of a way worse trouble down the line. so this goes hand in hand with your right to be protected from unreasonable searches and seizures. So we're Frankie: The easiest way for a cop to get into your shit is for you to consent. Judah: Is for you to consent. And in the United States, especially in Oregon, silence is consent. So let's say law enforcement shows up to your house and they show you a warrant, which means that they're just gonna come in, you still need to say out loud, I do not consent to any search or seizure. I do not consent because we as lawyers can go back later and find that that warrant was invalid, that it was over broad, but we need you to not consent to the search because if we get the warrant thrown out, then they're gonna come back and say that you consented to that search. So hey, can I search your stuff? I do not consent to any search or seizure. I do not consent. You have to say it out loud. Frankie: There are instances where the officers even if you don't consent, will find other ways to search your stuff. Either they already have a search warrant, which means they've actually done their job, which is not common. Judah: Yeah, th them showing up with a search warrant is far less common than I'm gonna do a cursory pat down because I'm detaining you, just to feel for any weapons. But there is some really great limiting case law. So they're allowed to like touch and pat you down to make sure you don't have any weapons on or around you, but they can't be like all up in your business outside of where you can reach for a weapon while they're detaining you. Frankie: And there is actually I know we're not getting into the nitty gritty of the cases, but there is a case under advisement at the Oregon Supreme Court right now that may further limit specifically vehicle searches, once you are out of the vehicle and detained and away from it. Whether or not that wingspan search is still good anymore is currently under advisement. We should be hearing from that like any day now. Judah: I hope so, because we've had some other really, really great car search law come out over the last three years. And it we're not Frankie: Mm. Yeah. Judah: gonna get too nitty gritty into Oregon Law. A lot of our listeners aren't Oregonians anyway. But regardless of where you live in the United States, I do not consent to any searches. Search warrant or no search warrant. If the cops are gonna like search and take your stuff, they're gonna do it, but you need to say I'm not consenting to this. Frankie: If you are in a situation where you are pulled over for a drunk drive, detained for a drunk drive, or any other sort of driving infraction where your car is going to be left in an illegal parking situation. If you're parked in a parking lot, cool. If you're in an illegal parking situation, parked on the side of the road, ask to call a friend to get your vehicle. This will prevent the officers from doing what's called an inventory search. What that is supposed to do is when a car is impounded, it's supposed to, allegedly, protect the cops from if something winds up missing from the car, right? What it is used as is a free ticket to search your car. Judah: Yes. Okay, so let's talk about inventory searches for just a second 'cause I have like a very amusing example. So we're still talking about Oregon Law. So inventory searches are also supposed to and this is a lot of the reasoning, designed to protect law enforcement, like if they're impounding your car, from being accused of stealing valuable items. So they need to look through your car to to see like we're gonna inventory, we're just gonna make a note of all the valuable items in the car when we're taking it so that when you get it back, we can show you that you have all the stuff that you left with. That's been a justification. And so nobody so far, I've passed this by a few other defense lawyers and they all say, yeah, my reasoning is sound. If you decide for some reason to keep a jar of used cat litter in the back of your car and you put put label on it that said there's five thousand dollars of diamonds in this jar. Reasonably if they're doing an actual inventory search of your car, they're gonna have to hand go through that whole jar of dirty litter looking for those diamonds. Frankie: Mm-hmm. Yep. and there's no specific statute or anything on the inventory searches. It's each individual law enforcement agency has their own inventory policy. So it's a pain in the ass. But they all generally have provisions about opening and exploring containers designed to or potentially containing valuables. Judah: And that's where they're like people like we're finding drugs. So let's say let's say you've got for pretensies, you've got one jar and hidden that looks the same as your like cat shit jar. And inside you've got some ecstasy tablets. And in the other jar you've written, hey there's diamonds in here in amongst the cat shit. A lawyer could hypothetically argue that if they only search one jar and find the ecstasy, but if they don't search the cat shit jar, that that's an improper inventory search and try and get that search thrown out. Frankie: Yes. No. Judah: This is not advice on how to break the law. This is just like sometimes you think about how to fuck around a little bit. Frankie: Yep. In the event that there is another person in the car, maybe they can't take the car with them because they are unlicensed or they are also intoxicated, but they are not getting arrested if you have a purse or a backpack or some other portable thing that could carry valuables. You are allowed under Oregon law to Give that purse or backpack or other thing that can carry valuables and give it to somebody else to take home. Judah: And the cops are not allowed to search that because you've given it over so they can't inventory it. Frankie: Yes, it takes it out of the inventory search. Judah: Yeah. Alright, so like this is the most important part of our know your rights that we've done just now. So here's the things to take home. Am I being detained or am I free to go? If you are being detained, I wish to remain silent, I want a lawyer. Any time that law enforcement is trying to search anything ask permission to search or start searching say out loud I do not consent to this search doesn't matter if they have a warrant or if they don't have a warrant I do not consent to this search out loud The hardest part of this for people is that you might be detained, you might be arrested, and it's a long time, and your instinct is to start talking because you're anxious, and that's what they want. You need to have the ability to shut the absolute fuck up for several hours to overnight. Frankie: Yes. Judah: But the more quiet you are, the better things are going to go for you. Cops can and do lie to you. All the time. It's part of the routine, it's part of procedure. Stay shut up. Get a lawyer. Frankie: Yep. Even if they start promising 'cause this is something that they'll do, hey, we just want to help out. If you tell us your side of the thing, we'll just give you a citation, we won't take you in. That's bullshit. If they are talking to you like that, they have sufficient cause to arrest you. They're just trying to get you to talk. Judah: Yeah, so it is shut up time until they're trying to search your stuff, and then it is one sentence time. I do not consent to this search. I don't consent to that search. when physically you have to comply, but you say out loud I don't consent. Okay, and then we're gonna go on to things that are important, but if you remember just the things that we just said and you do those things, you have positioned yourself better than I'm gonna say ninety-five percent of people that I've worked with. Frankie: Yep, yep. I would agree with that statistic. I am always pleasantly surprised when I have a client who does not talk. Judah: Yes. I have had clients I've had juvenile clients who said, I'm not talking, I want a lawyer and then when it gets down to like, well we've tried to go out from here, they were just so expecting this kid to talk and they've had precious nothing. Shut up. Frankie: Shut up. Yeah. And keep in mind, even if you don't think that they hear you, like if you're talking to yourself or you're talking to a friend or on the phone or whatever it is, not all, but most agencies wear body worn camera and there is audio and video recording in the cab of the car. Judah: Not just in the cab with a car, there's audio recording in your holding cell. There's audio Frankie: Mm-hmm. Judah: recording for every phone call that's not to your lawyer. And Frankie: Yep. Judah: it's a common tactic for police to put a confidential informant, also known as a CI or an undercover officer, to try and just get you to chit chat with them in the cell. Shut up. Frankie: Yep. if you are arrested. Do not talk to anybody about your case but your attorney. Especially do not talk to the complaining witness, because that will bring up additional charges of tampering. even if it's not active tampering, they'll charge tampering. Judah: To quote the great Louise Belcher from Bob's Burgers. Okay guys, first calls to your lawyer, not to your mom. Frankie: Mm-hmm. Yep. And do not talk to anybody on the phone about your case aside from your attorney. Those lines are recorded. The attorney line is not, but the all the other lines, the ones that you have to pay for, are recorded. Judah: How how many times have I gotten a snarky email from the district attorney's office with a jailhouse phone call recording? I don't want to do it again. Frankie: Marion County DA's office likes to just dump piles of jail calls like a month before trial. It's fun. Even if there's nothing in them. But still, I don't want to listen to your jail calls. Judah: Okay. So that's the meat and potatoes. do you wanna hit First Amendment and Frankie: Yes. Judah: then what else do you wanna hit before we're Frankie: we could do a little bit of jury trial stuff, jury judge trial, that kind of thing. Okay. Judah: I think let's save that like for what's a trial like. Let's just hit the first amendment 'cause a lot of the people we're talking to are engaged in public action or public protest. Frankie: Yes. Especially with everything that's going on now. There are like protests that are organized nationwide. We've had the No Kings protests and things like that. First Amendment rights are one of the holiest of the holy of rights in the United States. That doesn't mean that there aren't ways to protect yourself while you are doing so. Judah: Okay, so the first amendment says that the government cannot infringe on your speech, also known as the right to free speech. We've talked in earlier episodes about some exceptions like when Frankie did porn. Not you when Frankie to when Frankie talked about pornography. I'm sorry. I came out wrong. Frankie: Not a thing I do. Thank you. Judah: As soon as I said it, I heard it. Frankie: I'm leaving that in, by the way. Judah: so defamatory speech is not protected, but you can go Frankie: Mm. Judah: to trial for that. fighting words, so trying to get somebody to engage in physical altercation, those aren't protected. Obscenity is not protected, but generally speaking, the government cannot tell you what to say or what not to say or when to say it. But here's what I want to talk about, then you can talk about your stuff. The government is allowed to place what's called time place manner restrictions on Frankie: Mm-hmm. Yep. Judah: free speech. So the place your speech is protected the most is on public property or in your own home. Frankie: Yes. Judah: for example, a legislative session inside where the legislators are, that's still public property. So the Supreme Court long ago said that they could provide reasonable restrictions that are necessary to achieve a specific goal for instance, when you say something or where you say something. So you can't walk down into a legislative session and start yelling, but the government has to provide you an alternative what's called public forum that's reasonably accessible, but they can also say when you can do it. So like maybe between the hours of seven o'clock in the morning and ten o'clock at night. And the reason for that is neighbors or something. Frankie: Yep. And this is where you see like when there's big Supreme Court cases coming down, like when Dobbs came down, when like back in the day the marriage equality came down, you saw pictures of people standing, you know, ten people deep outside of the Supreme Court holding up signs saying one thing or the other. That is the place restriction. They can't protest inside of the building and so they're allowed to protest just outside the door so that they are still having their voices heard but not disrupting the proceedings inside. Judah: And when we say so time place manner, so when you can do it, where you can do it, and manner is how you can do it. So for example, restricting the use of voice amplification Frankie: Mm-hmm. Judah: for free speech, that can happen to say you're too loud, it's gonna be too disruptive. so time place manner restrictions are possible. That does not mean so say I'm over at Frankie's house and I hypothetically say something that is protected free speech by the government but is deeply offensive to my friend. Frankie is not the government. Frankie: Nope. Judah: Frankie can say, Get the hell out of my house right Frankie: Yep. Judah: now and don't come back. Because Frankie is not the government. And so if I am criticizing someone about their free speech, or I'm saying, Hey, in my personal place of business, in my personal home, on my property. I don't want you talking like that. You have to get off. That it's not an infringement of free speech. Frankie: Right. And this is where we get into a lot of people making arguments when they're talking on Facebook or X or other social media, getting flustered when they get, you know, put in Facebook jail or what have you because free speech. No. Meta is a private company. X is a private company. You know, Blue Sky, all those. They're all private companies. They are not run by the government, although with Meta it's getting close. And they are allowed to restrict your speech within, you know, they have their community standards, their community guidelines. Those are perfectly legal because that agency is not the government. And so Judah: Mm-hmm. Frankie: it's not the government restricting your speech. It's a private company. Judah: If I started like a new social media and I called it cow talk and the rule was you could only talk about cows or post pictures of cows, I'm allowed to do that. I'm allowed to say you can only talk about this subject on cow talk because it's my private company. Frankie: Yep. Judah mentioned like curfew type things, that's that's a reasonable restriction on time because you don't want people screaming in the middle of the night and calling it free speech and waking up the neighborhood. That's a reasonable restriction. it's not stopping you from saying stuff, it's just stopping you from waking up your neighbors. Judah: Yeah. yes, you could go say it at home. things like those curfews you're talking about, like noise restrictions in neighborhoods, that is also not designed to prevent speech, it's designed to prevent disruption. Frankie: Yes. Judah: So there's there's different things, so generally protect yourself, but since we've got through like the protesters' basics of shut up, just shut up. Frankie: Yes. and you're able to express yourself and with these protests, if cops show up, comply and just stop talking. Right? They're looking for people who are violating the law people who are what's called inciting violence, which is that fighting words exception that Judah was talking about earlier. it's the reason that, you know, the president was able to be indicted after his speech that then instigated January sixth. these are things that are outside of the protections because they are in turn infringing on somebody else's rights to health and safety and peace, right? If you are telling somebody else to go beat up a third person, you're infringing on that third person's right to safety. Judah: Well so there's other things I just want to give advice on. So if you're like in a protest group and you've got somebody that comes in and they're really excited to do stuff and they want to get everybody together to go do something illegal, that that person's a cop. that person is a cop. If you're Frankie: Yes. Yep. Judah: if you're at a big protest and somebody comes along it's like, let's go over there and hit him with bats, that person's a cop. somebody comes up, hey we're around here, can I buy drugs? That person's a cop. cop cop cop cop. If they're new and enthusiastic and they wanna know everybody and everything and they want you to do something that's shady, cop. Cop cop cop. Only Frankie: Yeah. Yeah, cop cops do not tell the truth. There was an entire interrogation technique called the read technique, which has since I think been kicked out for constitutional violations that was entirely based on lying to the suspect to get them to confess. They're not supposed to be doing that anymore. They still kinda do. Judah: that's really only enforceable for juveniles because they have stronger protections, but it's not fully. Anyway, so the things especially the feds, especially the feds love to infiltrate an activist movement. And if you'd like more information, you can talk to mm a Black Panther. Frankie: Yep. Yep. And speaking of feds, when we're talking about know your rights, we have to also include information about rights against ICE at this point in our history. there's the potential and it has happened where I practice, I'm sure it's happened where Judah's practiced, for plain clothes ICE agents to come in with some sort of a warrant. To try and detain your client, or you, because maybe you look like somebody who they want to detain, or maybe they just think you're an immigrant and you're not. Or you are and you need other protections. Whatever the situation, there are two types of warrants that an immigration officer could present. One is a judicial warrant. That's legit, that means you're getting arrested. The other is an administrative warrant. This Judah: This is where my song comes in. Frankie: is a warrant that the immigration officer themselves writes up. It's not based in any sort of probable cause or reasonable suspicion or anything that you would need to substantiate a warrant in general. That is not a legitimate warrant. That is a warrant that you don't have to obey. And if you are in a situation where ICE is at your home and they are asking you to open the door to identify yourself, do not do that. Ask them to either hold the warrant up to the window or slide it under the door so that you can take a look at it. If it does not have a judge's signature on it, you do not let them in. You lock the door and go to the back of the house. Judah: I wrote a little song about administrative warts. This instrument right here is a stylophone. I don't know if you've ever seen one before. Okay, see if I can You can wipe your ass with an administrative warrant. The song. Frankie: It's true though. they are not worth the paper that they're printed on, and it's literally just the officer themselves saying, I want to arrest this person. They don't need to prove anything to a judge. They don't need to have any sort of cause whatsoever. They can just decide, I'm going to arrest this person. Here you go. Not enforceable. Judah: Yeah. Not enforceable. A and with that I would like to close by saying, When in doubt, Frankie: Shut the fuck up? Judah: shut the fuck up Maybe we should close all of our episodes that way. When in doubt, Frankie: Yeah. Judah: shut the fuck up. Frankie: And with that, next week, super exciting, we are going to have our first guest host on the pod. it will be Shannon Wilson from the Marion County Public Defender's Office, also my boss. they are going to be on talking about the fight that they have been having with the Oregon Public Defense Commission, which is the commission that funds all public defenders. and their fight for ethical caseloads. So super excited about that. As always, like, subscribe and share the podcast so we can continue to grow. If you have any questions, thoughts, concerns, you can reach out to us on Facebook, Instagram, or Blue Sky or via email at dumb defences podcast at gmail dot com. I still haven't seen any cookie recipes, which I know Judah's gonna pipe up about. He's making faces. and we'll see you next week. And Judah: And shut up. Frankie: and keep your keep your mouth shut. All right. Judah: Bye. Frankie: Bye.